Social Question

After reading this article, is it proper to accept the Constitution's words on its face?

Originalism is a method of Constitutional interpretation placing weight on what the intent of the original authors of the Constitution intended. This recent article in the New Yorker is a profound and simple discussion of the problems with an originalist position.

Of particular note is Benjamin Franklyn’s (read) statement on signing the Constitution:

I find that there are errors here, he explained, but, who knows, someday I might change my mind; I often do. “For having lived long, I have experienced many instances of being obliged by better Information, or fuller Consideration, to change Opinions even on important Subjects, which I once thought right, but found to be otherwise.” That people so often believe themselves to be right is no proof that they are; the only difference between the Church of Rome and the Church of England is that the former is infallible while the latter is never wrong. He hoped “that every member of the Convention who may still have Objections to it, would with me, on this occasion doubt a little of his own Infallibility, and to make manifest our Unanimity, put his name to this Instrument.” Although the document had its faults, he doubted that any other assembly would, at just that moment, have been able to draft a better one. “Thus I consent, Sir, to this Constitution because I expect no better, and because I am not sure, that it is not the best.”

After reading the article (hopefully) – is there a real argument to arguing a primary reading of the Constitution be originalist? How much merit should we place on the opinions of people who lived centuries ago in almost unrecognizable political and social systems?

35 Answers

you don’t have to convince me that the idea that we “must hew only to what the Framers’ considered” is incorrect. The Constitution was created as a compromise document, although well crafted in its checks and balances. The Framers did understand that times would change, hence the ability to amend the document.

But, as Marbury vs Madison decided, it is the Supreme Court who gets to interpret (or not interpret) the Constitution.

Originalism vs. the idea that the Constitution is a “living” document (not sure what “ism” that is) is a false dichotomy.

The Framers included provisions for amendment in the original Constitution. So the original intent was for a constitution that could be changed without having to call another constitutional convention. Moreover, changing the original document was a condition for its ratification. Some states refused to ratify it until they were promised that a bill of rights would be added. The Bill of Rights is a set of amendments.

That doesn’t settle any debates about, say, judicial activism. But if we want to have a debate about judicial activism, or citizenship for the children of illegal aliens, or whatever, we ought to do so directly instead of obscuring the debate with circumlocutions and posturing about the original intent of the Framers.

@iamthemob : Thank you for bringing this wonderful article to light here.

I found this statement in the article to one of the most profound: “What has made the Constitution durable is the same as what makes it demanding: the fact that so much was left out.” I single this sentence out, because when I studied the Constitution in graduate school, that fact was greatly impressed on me. The principle that the Constitution is not the last word on many subjects that come before the courts is enshrined in our tenth amendment, or the final amendment of the Bill of Rights: “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” In my opinion, this statement simply means that if it’s not written here, then it belongs to the people in the end.

Much was left out of the Constitution, because the framers knew better. To make a document full of minutia would be impractical. It would be cumbersome, and more than likely, full of mistakes.

As it is, our Constitution is a great document and can be held up as a fine example of a law that lives and breathes. It can change as the times change, and at the same time, it can be firm bedrock on which to form other laws. It is a paradoxical document or “instrument” as Franklin called it. It can change by amendment or through judicial review, which is subject to the vagaries of time. It can remain firm as bedrock in its insistence that its power rests with the people.

The battle over our Constitution is as old as the document itself. The debate over its ratification was contentious and pitted friends against one another. Studying that debate is enlightening. I think I’ll drag my history books out again and start that study anew.

What the Constitution says, the Constitution says. If you don’t like what it says or just want “change” for the sake of change, amend it. But don’t just try to negate it by administrative fiat. That way lies dictatorship and authoritarianism.

@CaptainHarley – But that’s not really an argument. The Constitution says very little – it’s gaps were meant to be filled. It’s meaning to be fleshed out. This isn’t “change” for the sake of it, nor is it negation – it’s a deeper understanding.

Words are words until we give them real meaning. The Constitution was meant to be an outline, it seems, more than a mandate.

That’s all well and good, but who changes it… or adds to it… or fills it in? Do they do it by amending it, as the founders planned. Or do they try to make an end run around it by some sort of legislative fiat or administrative arrogation?

For instance, “citizen” as a word was clearly changed by amendment. And I think we all can agree, for better. In fact, it was amended once for race, and a second time for gender.

What “freedom of speech” has meant has grown in understanding – where what the second amendment has meant has changed within the past 30 years drastically (prior to that, it was accepted that it was about militias and not arms).

The problem is that the Constitution is really the most specific in the Articles, and not the Amendments. And in the Articles, it is still fairly loose.

I’m sorry the original intent is a bedrock principle. It is more often the case that create problems when we try to adjust the meaning to the state of society at the time. There are 27 amendments and that the method for updating.

I’m hoping you’re not suggesting that we read it as we please. Or that the courts read it as they please. May free speech doesn’t really mean all spech but only that speech that doesn’t offend. Or maybe freedom of the press really means they can print anything approved by the government. Or here’s a good one “nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb”. Maybe that means we can only do it if they call it by a different name (still the same offense). A little judicial activism actually got this through.

No I’d much rather see us interpret it as the original intent. If we don’t like that then we must change it.

@iamthemob What a Great Question. As the debate above shows, not an easy one to answer, and one that often touches raw nerves within our heated political divisions today—and that did so in the past.

In looking at the document as a whole work of literature, and at the notes and letters of the men who wrote, debated and ratified it as well as those who gave it their stamp of approval among the states; it is abundantly clear that the Founders realized they were not gods. They knew that they were not omniscient. They knew they would write their document in ink, not lightning bolts carving out text on stone. They not only provided a clear path to change their work as time made portions obsolete, in many areas they worded what they wrote in deliberately vague language; the understanding of which has changed over time.

As @submariner and you both noted, the meaning of:citizen has expanded from white males to all US males, to all US persons and recently the Corporatist wing of the court decided that the Founders really meant Corporations as well when they said “citizens.” It is informative that most of the Originalists who insist on a strict interpretation of the Founders’ intent applaud the Citizens United decision when there was no such thing as a national or multinational Corporation at the time our Constitution was written and ratified. Each state granted charters to a Company to operate within that state’s own borders. This and many other inconsistencies in Originalists’ stances lead me to believe that their love is not so much for the Founding Father’s intent as it is for a particular political ideology. They just chose to believe that the Founders meant every word to mean what they currently want it to mean.

Another example of Originalist hypocrisy is the complaint about unelected judges being able to thwart the will of the people’s elected representatives. The Constitution provided for a judiciary free from the whims of the majority. The Founders made it clear that the Judiciary was meant as a safeguard against the tyranny of the majority. Calls for elected judges are as far from Originalism as one could get, and yet we hear them routinely from people calling themselves Origninalists.

That said, I most certainly think we should do our best to understand what the Founders did intend, and when we want to head in a direction they specifically forbade, do so by amendment, not twisting of their words. But we must also recognize that the Constitution is a living document and its meaning hinges on the meaning attached to every word, and often more importantly, to the words that are not there.

When people talk about “activist judges,” I often find myself calling back to the idea of the tyranny of the majority that you mention. People often decry an active majority when it defends a minority position – and that’s what I find most disheartening.

There are two elected, and one appointed main body. The appointed one is meant to balance an idea of justice and principle against the cries of the majority in many ways, and is meant as a balance against an unfair majority in as many ways…and this is something that I think people don’t consider…especially when we discuss a “balance of powers” and a “system of checks and balances.”

I didn’t really ask any questions, those were rhetorical. And I don’t see where the article contradicts or answers any of those. It provides some insight into how people read into the constitution what the want it to say. Nonetheless, the original intent is and has been a major part of how the courts resolve differences. My biggest concern is the idea that it is out of date, that we need to somehow interpret it differently because we have more technology or a more ‘enlightened’ society.

The constitution is a framework for government. It doesn’t provide a lot of detail but the ideas and philosophy were not a product of the 16th century. They are timeless. The pitfalls of Theocracies or dictatorships have been around for thousands of years and will continue to plague mankind. The rights outlined were intended to insure the people would not fall victim to an overreaching government. The original intent of those rights, of that division of power, is key to sustaining the free and open society we all want.

Your question asks “How much merit should we place on the opinions of people who lived centuries ago in almost unrecognizable political and social systems?”

Technology changes, principles do not. Those people lived through the nightmares they saved us from. Very few of us have had to deal with those problems and the insight from the founding fathers is incredible. I would ask you what in the constitution you believe is out of date? Which rights do we no longer need? What limits to government power should be removed?

We may disagree on what the original intent was (that’s the basis for every supreme court decision) but to imply that we should no longer care what the original intent was, is simply misguided.

Whether or not your questions were rhetorical – they are still questions. Whether I call them “questions” or “comments” doesn’t matter, as I meant to address the same issue – they don’t, as you state, address the general issues of the article, and that I was asking about originalism.

Any implication that “we should no longer care” is really an inference on your part…there is no question that the intent and principles of the founding fathers is an important aspect to Constitutional interpretation.

The problem with originalism, however, is that it starts and ends there. This is contrary, in many ways, to the intent of the founding fathers – that the Constitution grow, not change, with society. Principles, also, may be timeless…but what we understand those principles to mean shifts constantly. There is nothing that is “out of date” in it, nothing that we “no longer need” and no “limits to government power” that need to be removed. But arguments like “find it in the Constitution” or “I believe it means what it says when” are based in an obsessive originalism and textualism that privileges an understanding of the rights as they were at the writing. It’s a dangerous argument as it prevents growth.

Original intent is not the basis for every supreme court decision. There are certain rights that are ancillary to rights described in the Constitution, that support it, that have been fleshed out from it (for good or bad) that have been a departure from the original intent – but not by necessity the principles of the Constitution. Again, original intent has often been the basis, and is more often the starting point, but it is not always a necessity. Eighth Amendment jurisprudence would be locked into an state that would be almost idiotic – where racking, drawing and quartering, public pillory would not be considered cruel and unusual now because they weren’t then – even though we as a society would find certain punishments horrific.

That’s the problem. Not doing away with original intent…but rather making original intent a platform – the “cult of Constitutionalism” as discussed in the article.

We may be missing each other ever so slightly. And you seem to modify the question each time I respond. When you ask “How much merit should we place on the opinions of people who lived centuries ago”, I answer ‘a lot’. The opinions and issues they addressed are still pertinent and and remain the bedrock for our system of government.

If you want to argue that the original intent can be misinterpreted, I have no problem with that. But I think the arguments like “find it in the constitution” are equally misinterpreted. Generally that means ‘find where the federal government gets the authority to do something’.

If you are arguing ‘Health Care’ you may hear an argument like “find it in the Constitution”. That doesn’t mean find the words ‘Health Care’ in the constitution, it means find where the federal government derives the authority to force people to purchase products or services that they may or may not want to purchase. The limitation on federal power is still pertinent and drives (or at least should) the courts decisions. The government would love to set the constitution aside on this issue and say it simply doesn’t pertain, our society has changed. Personally I think that leads us down a very dangerous path.

Your argument about the cruel and unusual punishment is a bit of a ‘red herring’. Those were not commonplace during the time of the founding and were precisely the types of punishments the constitution was trying to outlaw.

So I say again, I think original intent is and should be the driving factor in constitutional decisions. And I think the opinions of those leaders, hundreds of years ago are still relevant. I don’t see anyone in government today, smart enough to rewrite a better constitution. We may argue about the original intent but that’s because it is important.

There are several sub-questions that flesh out different issues. You say modify – I say clarify. But don’t assign any intent in my question until you ask me about it. You know that gets me riled – wording things on the internet, and generally, is always an imperfect task (as our Founders argued).

I think that you’re right to a degree about “find it in the Constitution” meaning “where’s the authority.” The problem is that when that argument gets “trickled down” much of the population doesn’t understand that the Constitution isn’t the end of the search. Federal law and court decisions are required resources for determining where authority comes from. We may not consider them all right, but when people use the Constitution as the sole authoritative text, it’s irresponsible as there is hundreds of years of debate and law we must often look at as well.

But those nuances are lost – and that’s where I see a balancing danger to that of expanding federal power unnecessarily and improperly.

The problem, of course, with saying “those were what the Constitution was trying to outlaw” is that if they were, they would have been enumerated. The Eighth Amendment was an overarching principle that requires developing input – the “evolving standards of decency.” If it was meant to say “these punishments are wrong” then it would have. If there was debate about whether one thing was cruel and another was not (as there always is) then there is no red herring aspect. I threw out a couple of examples to demonstrate this. The argument itself is sound. Don’t look at the examples.

Here’s the division – I think that there’s a separation between original intent when there is an intersection of the rights of the people and the authority of the federal government to enact legislation to protect those rights. Gay marriage is a good example. Marriage is a distinctly state-managed institution. But with DOMA, we have an unprecedented limitation of rights under the guise of a need to manage federal issues (income tax, immigration, etc.). However, the aspects of those were already diversified based on state law. So, the authority appears to be there, but the traditional restraint is gone.

We also have to consider the sheer change in size in the U.S. as a balance to originalism. But, I think that you’re right that the weight of originalism should be significant in the “where’s the authority for us to do this” part of the argument. After that though (e.g., how does this law that was enacted with authority embody these principles) we need to look more to ourselves.

Then we differ. I firmly hold to the approach that says that the Constitution intends exactly what it says, and that if you want to change that, then you have to change the language, which means an amendment. The very term “interpretation” when applied to the Constitution sets off warning bells.

I don’t see that it matters much that the document was a compromise among several competing interests and philosophies. It’s a working document. As to “which founding fathers do we listen to,” my response is “all of them, plus the wording of the actual document itself.” The wording is the result of compromise, but that in no way renders it incorrect.

If there is disagreement over the meaning of the actual words, then it should be submitted to the Supreme Court to decide the actual meaning, which ( unless I totally misunderstand something ) is what happens even today. Where the problem comes in is when judges attempt to alter the meaning of the Constitution via judicial fiat, or worse yet, some un-elected bureaucrat attempts to do so. THAT I find scary.

Yes, precedent. A necessary evil. The accurate or inaccurate reading of original intent. It affects all subsequent rulings whether good or bad. Don’t misunderstand, I’m not arguing against the precedence of previous rulings, merely noting that it is an imperfect system. I wish I had a better way. Some of the rulings I’ve read make you scratch your head and say how the hell did they come up with that. It appears obvious that in some cases the court liked the law and stretched reality to insure it stood.

I totally disagree that those punishments would have been enumerated. It would be impossible to list all the possible punishments that are ‘Cruel or Unusual’. The human race has shown it’s most ingenuity in developing methods of killing each other painfully. A listing could not possibly capture them all. With the 8th amendment the original intent was captured in a single sentence. Some of things they did to people during medieval times and before, make you recoil in disgust. Baking someone over a fire in a brass pig was painful but not very creative. There were very creative methods used.

As for the DOMA, I’m not sure what you meant. What traditional restraints were removed? My understanding is that it only pertained to recognition of marriage across state lines. If married in one state where it was legal it wouldn’t necessarily have to honored in another state where it was not legal. I fully admit I haven’t studied this so if my understanding is wrong, I’ll retract it.

As an example, let’s use the current of the FTC to limit freedom of expression on both the airwaves and the Internet. I am no expert on all of this, so I may have to refer questions to various other sites, if I have time to do so.

“Don’t misunderstand, I’m not arguing against the precedence of previous rulings, merely noting that it is an imperfect system.”

Right there with you. There is no perfect system – and even if there were, it would be managed by imperfect people. I like the common law system because it allows for small-scale changes on a case-by-case basis…and when the questions become big, and the conflicts big, it moves to the next stage.

About the enumeration, I think we’re actually on the same page. It was left open because people needed to determine for themselves. Eighth Amendment jurisprudence has looked to what people are doing, in most cases, to determine what people think is right now. Contrary to what people seem to think, we as a people have gotten more and more compassionate when it comes to punishment – and I think that the open-nature of the Eighth Amendment is a testament to that.

For DOMA – the traditional constraints were on the federal government enacting family-law legislation. In the Loving case, the miscegenation laws of certain states were (properly, I argue) overturned. But until that point, each state was allowed to state whether mixed-race marriages were proper or not, and the federal government allowed for joint filing, immigration, etc. based on the state marriage laws. In DOMA, the radical shift was stating that they would not allow state-interpretation of marriage to influence federal interpretation.

The commity requirements have Fourteenth Amendment implications, and that’s what you are discussing. They’re important, but comity has been limited by state law disallowing marriages that violate a fundamental moral policy. Therefore, if one moved to an amendment state where same-sex marriage were not allowed, they’d lose recognition of the marriage (this has been shown to happen with marriages involving close relatives moving from one state to another). So, although there are Constitutional issues to be concerned with, the Federal government has always restrained itself in respecting an individual state’s choice in what kind of marriages it would recognize, and allowing the federal benefits associated with marriage to be available to people in that state.

@CaptainHarley – Are you talking about the FCC or the FTC? If so…I think you should look into this. The FCC regulations are actually about limiting monopoly influence on freedom of expression…so they’re actually awesome.